Defeated judges find way back to bench

The Illinois Supreme Court in the past year kept seven politically connected judges on the Cook County bench after they were rejected by voters, a common practice the high court had pledged to curtail.

One had given more than $20,000 to the Cook County Democratic Party. Two had connections to Illinois House Speaker Michael Madigan. Others have ties to powerful Chicago Democrats who decide who gets the party's support to be judge.

They weren't the only active Democrats chosen for Circuit Court duty by the high court's three justices from Chicago, all who are Democrats themselves. A Tribune review also found the court reappointed three judges who dropped out of judicial races, making room for the Democratic Party's favored candidate.

Supreme Court spokesman Joseph Tybor said the appointment of judges who lost elections was "not a black and white issue."

"The appointment of qualified candidates who already have some experience as a judge — even though they may have lost a primary election — can be a useful way to replenish the bench with proven judicial talent until the voters have another chance to choose in the next election," Tybor said.

Critics have said the court's penchant for keeping non-elected judges on the bench lacks openness and could circumvent the will of voters.

The majority of the state's judiciary — from circuit judges to the seven Supreme Court justices — are elected. But the constitution gives the high court broad appointment power in its role as supervisor of the state's court system.

For years, the Supreme Court has kept judges on the bench after they lost elections, citing its power under the Illinois Constitution to bring back "retired" judges whenever it determines there is a public need — a practice known as "recall." The Chicago Council of Lawyers threatened to sue the Supreme Court in 1993 for the practice, and the court pledged to stop. But it didn't.

Last year the Tribune revealed the court had recalled to the bench 18 judges who lost elections since 2000 — many of them active Democrats. In response to that story, the Supreme Court said it had recently decided to stop recalling losing judges and provided a June 2011 letter from Chief Justice Thomas Kilbride.

"In short, our court has determined as a matter of administrative policy that non-elected circuit and appellate court judges shall not be considered for recall," Kilbride wrote.

But the latest Tribune review found the court continued to keep politically connected judges on the bench after election losses by appointing them to specific vacancies — including two judges who were previous beneficiaries of the court's recall practice.

Tybor said Kilbride's letter did not mean the court would not reappoint judges who lose elections — only that they would not be brought back under the recall procedure.

"Keep in mind, however, while the end result may be the same (they are still on the bench) the court did not go back on the policy it had announced last year," Tybor said in an email.

David Morrison, deputy director of the Illinois Campaign for Political Reform, said the Supreme Court should be more transparent in how it fills coveted spots on the bench.

"The Supreme Court should be less of a black box so you have an idea how they decide who should be a judge," Morrison said. "Certainly, party affiliation and political donations should not be a factor. The point should be to find the most qualified and skilled lawyers to be on the bench."

How the Supreme Court decides whom to appoint remains a mystery. Those chosen often have a common qualification on their resumes — ties to powerful Democratic politicians.

In Cook County, the process typically goes like this: The Supreme Court appoints a lawyer to the bench, the new judge later runs for election and loses, and the court then reappoints the losing judge to the bench at the same salary and benefits.

That's how it played out for Alfred M. Swanson Jr., a former radio news reporter, veteran lawyer and faithful Democrat.

For years, Swanson wanted to be a judge. He ran for an associate judgeship in 2007, a process where judges are chosen not by voters but by full Circuit Court judges in a secret ballot. Swanson ran with the blessing of Speaker Madigan who wrote a letter endorsing him.

Still, he lost.

In October 2010 when the Supreme Court tapped him to fill the vacancy of retiring Judge John A. Ward. The appointment seemingly gave Swanson a leg up in the 2012 election to fill Ward's seat, allowing him to campaign as a sitting judge.

Swanson had other factors in his favor, as well. The Democratic Party in October 2011 endorsed him as its preferred candidate. During the next three months, Swanson and his campaign committee gave $20,000 to the party, according to state campaign finance records.

All that did not matter. Voters selected former Assistant Public Defender Elizabeth Hayes over Swanson and four others.

Weeks before he was to leave the bench, the Supreme Court on Nov. 9 reappointed him to a new vacancy created with the retirement of another judge. The appointment is good through November 2014.

Swanson declined to comment.

In addition to Swanson, four other Democrats who lost in the March primary had their judicial wishes granted by the Supreme Court.

They are Peter J. Vilkelis, a donor to county Democrats; Gregory E. Ahern Jr., a veteran county prosecutor backed by North Side Ald. Richard Mell, 33rd; James L. Kaplan, a past chairman of the Illinois Board of Higher Education; and Daniel L. Peters, a southwest suburban lawyer whose committee gave a $450 donation to Ald. Edward Burke, 14th. Burke runs the county's judicial slating committee.

Kaplan said he wrote a letter during the summer to the three justices from Cook County — Mary Jane Theis, Charles Freeman and Anne Burke, the wife of Ed Burke.

"I let them know that I'd like to remain a judge," Kaplan said. "Everyone who ran wanted to be kept around. I've done a good job so I'd like to think the Supreme Court wanted to keep me."

Vilkelis and Peters could not be reached.

Ahern said the Supreme Court's pledge does not apply to him since he has never been a judge and is not being recalled to the bench. He said he first sent his resume to the justices about five years ago asking to be considered for a judicial appointment.

"I don't have any clout," he said, "or I would have been a judge five years ago."

Also in this year's crop of appointments are two who were previously appointed under the court's recall provision.

Lauretta Higgins Wolfson, the wife of a former appellate court judge, was first made a judge by the Supreme Court in 2006. Madigan backed her for an associate judge position in 2008, but she wasn't selected and she also lost when she ran for the bench that same year. Yet she has remained on the bench ever since, without having to face voters.

That's because the court keeps reappointing her. The court issued "recall" orders in 2008 and 2009 to keep her on the bench through late 2012. Then earlier this month, the court gave her a new appointment that lasts until Dec. 1, 2014 — but this time, they did not issue a "recall" order. Wolfson could not be reached for comment.

Also in this year's crop of resurrected judges is Kenneth L. Fletcher, a politically active former public defender who has been reappointed to the bench multiple times after losing the 2008 Democratic primary. Fletcher did not return a call for comment.

One other appointment since Kilbride's letter was that of Diann K. Marsalek, a party-backed candidate and Democratic donor. She lost the 2010 primary election and was appointed in September 2011 despite the Chicago Council of Lawyers' finding that she was "not qualified" to be a judge.

Marsalek, running as a sitting judge, was elected this year. She could not be reached for comment.

The Supreme Court elevated three lawyers to the bench in 2012 after each had bowed out of his or her race instead of going up against the Democratic Party-favored candidate.

Thomas J. Carroll was running for judge in 2012 against Daniel R. Degnan, the son of Timothy Degnan, a top aide to former Mayor Richard M. Daley.

Carroll's Democratic loyalties run deep. His family was friends with Ald. Burke. He also regularly gives to Democratic candidates, donating $250 in 2012 to Justice Theis, a total of $500 to Madigan's 13th Ward Democratic organization, and a total of $3,000 to Burke during the past year.

Carroll dropped out of the March primary race, leaving Daniel Degnan — who was rated as "not recommended" by the Council of Lawyers — as the lone candidate.

Two months later, on May 17, the Supreme Court reappointed Carroll to fill the vacancy created by the death of a judge.

"I don't know if that helped or not," Carroll said about his decision to drop out of the race. "The Supreme Court liked me so they reappointed me."

Carroll declined to comment on who suggested he withdraw, nor would he say if his campaign donations and ties to Burke helped.

The two others who dropped out were former state prosecutor Anthony C. Kyriakopoulos, who was running against former Ald. Tom Allen, and Caroline Kate Moreland, a former county prosecutor who stepped aside in a race against Michael T. Mullen, whose campaign committee gave $30,000 this year to the county Democratic Party.

Kyriakopoulos did not return messages. Moreland said she sought reappointment this fall and was selected Nov. 30.

"I didn't make any deals," Moreland said of withdrawing from the race. "That was a personal and political decision that I made."